I 116TH CONGRESS 1ST SESSION H. R. 1392 To amend title 5, United States Code, to modify the authority for pay and work schedules of border patrol agents, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 27, 2019 Mr. HURD of Texas (for himself, Ms. TORRES SMALL of New Mexico, and Mr. CUELLAR) introduced the following bill; which was referred to the Com- mittee on Oversight and Reform A BILL To amend title 5, United States Code, to modify the author- ity for pay and work schedules of border patrol agents, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Border Patrol Agent 4 Pay Reform Amendments Act of 2019’’. 5 SEC. 2. AMENDMENTS TO THE BORDER PATROL AGENT PAY 6 REFORM ACT OF 2014. 7 (a) BORDER PATROL AGENT PAY.—Section 5550 of 8 title 5, United States Code, is amended— 9 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 2 •HR 1392 IH (1) in subsection (a)(1), by inserting ‘‘agent’’ 1 after ‘‘applicable border patrol’’; 2 (2) in subsection (b)(1)— 3 (A) in subparagraph (A), by striking ‘‘Not 4 later than 30 days before the first day of each 5 year beginning after the date of enactment of 6 this section, a border patrol agent shall make 7 an election whether the border patrol agent 8 shall, for that year, be assigned to’’ and insert- 9 ing ‘‘Not later than December 1 of each year, 10 a border patrol agent shall make an election 11 whether the border patrol agent shall, for the 12 next annual period beginning on the first day of 13 the first pay period that commences on or after 14 January 1, be assigned to’’; 15 (B) in subparagraph (C), by striking ‘‘Not 16 later than 60 days before the first day of each 17 year beginning after the date of enactment of 18 this section’’ and inserting in its place ‘‘Not 19 later than November 1 of each year’’; 20 (C) in subparagraph (D)— 21 (i) by amending clause (iv) to read as 22 follows: 23 ‘‘(iv) a border patrol agent shall be 24 assigned a basic border patrol rate of pay 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 3 •HR 1392 IH during the period of initial training (in- 1 cluding initial orientation sessions, basic 2 training, and other preparatory activities) 3 prior to the agent’s first regular work as- 4 signment; and’’; and 5 (ii) in clause (v), by striking ‘‘or the 6 level 2 border patrol rate of pay’’; 7 (D) in subparagraph (E)— 8 (i) in clause (i), by striking ‘‘or the 9 level 2 border patrol rate of pay’’; 10 (ii) in clause (ii), by striking ‘‘the 11 analysis conducted under section 2(e) of 12 the Border Patrol Agent Pay Reform Act 13 of 2014’’ and inserting in its place ‘‘a writ- 14 ten staffing analysis’’; and 15 (iii) by adding at the end the fol- 16 lowing: 17 ‘‘(iv) EXCLUSION OF CERTAIN EM- 18 PLOYEES.—In applying any percentage 19 limit under clause (i) or (ii) to a location 20 population, U.S. Customs and Border Pro- 21 tection shall exclude from such population 22 any border patrol agent who is assigned a 23 basic border patrol rate of pay under sub- 24 paragraph (D)(iii) or (D)(iv) or who would 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 4 •HR 1392 IH reach the premium pay cap under section 1 5547 if assigned a level 1 border patrol 2 rate of pay. 3 ‘‘(v) APPLICATION FREQUENCY.—The 4 10 percent limit under clause (i) or an al- 5 ternative percentage limit under a waiver 6 under clause (ii) shall be applied at the be- 7 ginning of the first pay period beginning 8 on or after January 1 each year.’’; and 9 (E) by striking subparagraph (G); 10 (3) in subsection (b)(2)— 11 (A) by amending subparagraph (C)(i) to 12 read as follows: 13 ‘‘(i) any compensation under this sec- 14 tion or any other provision of law in addi- 15 tion to the compensation provided under 16 subparagraph (B); or’’; 17 (B) in subparagraph (E)— 18 (i) by striking ‘‘paid leave’’ and in- 19 serting ‘‘leave’’; and 20 (ii) by striking ‘‘absent from work’’ 21 and inserting ‘‘excused from work’’; 22 (C) in subparagraph (F)(ii), by striking 23 ‘‘and’’; 24 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 5 •HR 1392 IH (D) by amending subparagraph (G) to 1 read as follows: 2 ‘‘(G) if the border patrol agent participates 3 in a full day of advanced training but does not 4 perform the entire required amount of sched- 5 uled overtime work under subparagraph (A)(ii) 6 on that day, the border patrol agent shall be 7 deemed to have performed scheduled overtime 8 work during nonwork periods to the extent nec- 9 essary to reach the required amount, but such 10 deemed credit may be applied to no more than 11 180 hours in a calendar year; otherwise, the 12 agent shall accrue a debt of hours for scheduled 13 overtime not worked on such a day; and’’; and 14 (E) by adding at the end the following: 15 ‘‘(H) a border patrol agent may choose to 16 reduce any debt of obligated overtime hours 17 that the agent has incurred by applying any ac- 18 crued compensatory time off for travel pursuant 19 to section 5550b, and such compensatory time 20 off for travel may be applied towards such debt 21 only after other forms of overtime or earned 22 compensatory time credited to the border patrol 23 agent have been exhausted.’’; 24 (4) in subsection (b)(3)— 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 6 •HR 1392 IH (A) by amending subparagraph (C)(i) to 1 read as follows: 2 ‘‘(i) any compensation under this sec- 3 tion or any other provision of law in addi- 4 tion to the compensation provided under 5 subparagraph (B); or’’; 6 (B) in subparagraph (E), by striking ‘‘paid 7 leave’’ and inserting ‘‘leave’’; 8 (C) in subparagraph (F)(ii), by striking 9 ‘‘and’’; 10 (D) by amending subparagraph (G) to 11 read as follows: 12 ‘‘(G) if the border patrol agent participates 13 in a full day of advanced training but does not 14 perform the entire required amount of sched- 15 uled overtime work under subparagraph (A)(ii) 16 on that day, the border patrol agent shall be 17 deemed to have performed scheduled overtime 18 work during nonwork periods to the extent nec- 19 essary to reach the required amount, but such 20 deemed credit may be applied to no more than 21 90 hours in a calendar year; otherwise, the 22 agent shall accrue a debt of hours for scheduled 23 overtime not worked on such a day; and’’; and 24 (E) by adding at the end the following: 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 7 •HR 1392 IH ‘‘(H) a border patrol agent may choose to 1 reduce any debt of obligated overtime hours 2 that the agent has incurred by applying any ac- 3 crued compensatory time off for travel pursuant 4 to section 5550b; such compensatory time off 5 for travel may be applied towards such debt 6 only after other forms of overtime or earned 7 compensatory time credited to the border patrol 8 agent have been exhausted.’’; 9 (5) by amending subsection (d) to read as fol- 10 lows: 11 ‘‘(d) TREATMENT AS BASIC PAY.— 12 ‘‘(1) IN GENERAL.—Any overtime supplement 13 in addition to the basic border patrol rate of pay for 14 a border patrol agent resulting from application of 15 the level 1 border patrol rate of pay or the level 2 16 border patrol rate of pay shall be treated as part of 17 basic pay only— 18 ‘‘(A) except as otherwise provided in para- 19 graph (3), for purposes of the definitions in sec- 20 tion 8331(3) and 8401(4) and the provisions in 21 chapters 83 and 84 that rely on those defini- 22 tions (consistent with section 8331(3)(I)); 23 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 8 •HR 1392 IH ‘‘(B) except as otherwise provided in para- 1 graph (3), for purposes of sections 5595(c) and 2 8704(c); 3 ‘‘(C) for the purpose of section 8114(e); 4 and 5 ‘‘(D) subject to paragraph (2) and any 6 limitation established under paragraph (3), any 7 other purpose that the Director of the Office of 8 Personnel Management may by regulation pre- 9 scribe. 10 ‘‘(2) EXCLUSIONS.—The overtime supplement 11 described in paragraph (1) shall not be treated as 12 part of basic pay for purposes not covered by that 13 paragraph, including the purposes of calculating— 14 ‘‘(A) overtime pay, night pay, Sunday pay, 15 or holiday pay under section 5542, 5545, or 16 5546; 17 ‘‘(B) locality-based comparability payments 18 under section 5304 or special rate supplements 19 under section 5305; or 20 ‘‘(C) cost-of-living allowances in nonforeign 21 areas under section 5941. 22 ‘‘(3) LIMITATIONS.— 23 ‘‘(A) IN GENERAL.—During the control pe- 24 riod described in subparagraph (B), the amount 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 9 •HR 1392 IH of the overtime supplement that is considered 1 basic pay under paragraphs (1)(A) and (1)(B) 2 may not exceed the amount derived by multi- 3 plying the border patrol agent’s basic border 4 patrol rate of pay by the percentage rep- 5 resenting the agent’s career average of assigned 6 overtime supplement percentages (including 0 7 percent for periods of time during which no 8 overtime supplement was payable). That career 9 average percentage is computed without regard 10 to the effect of the limitation on premium pay 11 under section 5547, but the premium pay limi- 12 tation remains applicable in determining the 13 dollar amount of any overtime supplement com- 14 puted using the career average percentage. 15 ‘‘(B) CONTROL PERIOD.—For the purposes 16 of applying subparagraph (A), the control pe- 17 riod described in this subparagraph is the pe- 18 riod that begins 3 years before the date a bor- 19 der patrol agent will meet age and service re- 20 quirements associated with entitlement to an 21 immediate annuity and continues throughout 22 the remainder of the individual’s career as a 23 border patrol agent. 24 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 10 •HR 1392 IH ‘‘(C) ASSIGNED OVERTIME SUPPLEMENT 1 PERCENTAGES.—For the purpose of applying 2 subparagraph (A), a border patrol agent’s ini- 3 tial career average of assigned overtime supple- 4 ment percentages is the average for the border 5 patrol agent’s career (excluding any period of 6 initial training prior to the agent’s first regular 7 work assignment) prior to the beginning of the 8 control period described in subparagraph (B). 9 During such control period, the career average 10 shall be recomputed at the end of each annual 11 period (as described in subsection (b)(1)(A)). In 12 computing such career average, any periods of 13 service as a border patrol agent prior to the 14 first day of the first pay period beginning on or 15 after January 1, 2016, shall be included, and 16 the agent’s assigned overtime supplement dur- 17 ing such periods shall be deemed to be 25 per- 18 cent. 19 ‘‘(4) ANNUAL LEAVE PAYMENT.—For the pur- 20 pose of computing an agent’s lump-sum annual leave 21 payment under section 5551 or 5552, the pay the 22 agent is projected to receive shall include a deemed 23 overtime supplement derived under this paragraph. 24 Such overtime supplement shall be based on the 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 11 •HR 1392 IH lower of the agent’s actual overtime supplement per- 1 centage in effect at separation or the average per- 2 centage of the agent’s overtime supplement over the 3 26 full biweekly pay periods immediately preceding 4 that separation, and shall not exceed the amount 5 that is or would be payable under the premium pay 6 limitation in section 5547.’’; 7 (6) in subsection (f)— 8 (A) in the heading of such subsection, by 9 striking ‘‘AND SUBSTITUTION OF HOURS’’ and 10 inserting ‘‘DURING REGULAR TIME; ABSENCES 11 DURING SCHEDULED OVERTIME’’; and 12 (B) by adding at the end the following: 13 ‘‘(5) APPLICATION.— 14 ‘‘(A) LIMITATION ON SUBSTITUTION.— 15 Notwithstanding paragraph (1), scheduled over- 16 time (as described in paragraph (2)(A)(ii) or 17 (3)(A)(ii) of subsection (b)) may not be sub- 18 stituted for leave without pay on a day when a 19 border patrol agent has a full day of leave with- 20 out pay. 21 ‘‘(B) LEAVE WITHOUT PAY.—As provided 22 in paragraphs (2)(A)(ii) and (3)(A)(ii) of sub- 23 section (b), a border patrol agent shall incur no 24 scheduled overtime obligation on a day when 25 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 12 •HR 1392 IH the agent has a full day of leave without pay.’’; 1 and 2 (7) by adding at the end the following: 3 ‘‘(h) ALTERNATIVE WORK SCHEDULES.— 4 ‘‘(1) IN GENERAL.—Notwithstanding any other 5 provision in this section or section 6101, U.S. Cus- 6 toms and Border Protection may assign a border pa- 7 trol agent an alternative work schedule as described 8 in this subsection, subject to any regulations pre- 9 scribed by the Director of the Office of Personnel 10 Management. No alternative work schedule may be 11 established under subchapter II of chapter 61. 12 ‘‘(2) LEVEL 2 BORDER PATROL AGENT.—A bor- 13 der patrol agent receiving a level 2 border patrol 14 rate of pay may, in lieu of the standard work sched- 15 ule described in subsection (b)(3)(A), be assigned to 16 an alternative work schedule under the following 17 terms and conditions: 18 ‘‘(A) The alternative work schedule shall 19 be a regular tour of duty consisting of 9 work- 20 days per biweekly pay period, with— 21 ‘‘(i) 8 workdays including 9 hours of 22 regular time per workday and 1 additional 23 hour of scheduled overtime for each day 24 VerDate Sep 11 2014 01:09 Mar 12, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H1392.IH H1392 pbinns on DSK79D2C42PROD with BILLS 13 •HR 1392 IH the agent performs work during regular 1 time; and 2 ‘‘(ii) 1 workday including 8 hours of 3 regular time per workday an [Text truncated for display. Full text available on Congress.gov.]